IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KEVIN BROTT, et al.,
Plaintiffs,
Case No. 1:15-CV-00038
v.
Hon. Janet T. Neff
UNITED STATES OF AMERICA,
Defendant.
_____________________________________________________________________________
MICHIGAN LANDOWNERS’ RESPONSE TO THE
GOVERNMENT’S MOTION TO DISMISS
_____________________________________________________________________________
Mark F. (Thor) Hearne, II (P40231)
Meghan S. Largent
Stephen S. Davis
ARENT FOX, LLP
112 S. Hanley Road, Suite 200
Clayton, MO 63105
Tel: (314) 296-4000
Fax: (202) 857-6395
thornet@ix.netcom.com
1717 K Street, NW
Washington, DC 20006
Counsel for Plaintiffs
Matthew L. Vicari
MILLER JOHNSON PLC
250 Monroe Ave., NW, Suite 800
Grand Rapids, MI 49501-0306
Tel: (616) 831-1700
Fax: (616) 988-1762
vicarim@millerjohnson.com
Of Counsel
AFDOCS/12276621.1
TABLE OF CONTENTS
Page
BACKGROUND ................................................................................................................1
SUMMARY OF ARGUMENT..........................................................................................1
ARGUMENT .....................................................................................................................3
I.
II.
III.
The Constitution’s Fifth Amendment guarantee of “just compensation” is not
dependent upon a congressional waiver of sovereign immunity............................3
A.
The Fifth Amendment is a self-executing constitutionally-guaranteed right
to compensation..........................................................................................3
B.
Congress may not abrogate by statute the right to just compensation
guaranteed by the Constitution...................................................................5
C.
The government’s talismanic invocation of “sovereign immunity” is
contrary to the Supreme Court’s jurisprudence..........................................7
Congress cannot deny these Michigan landowners’ their Seventh Amendment
right to trial by jury.................................................................................................8
A.
The Seventh Amendment guarantees the right to trial by jury in Fifth
Amendment inverse condemnation suits....................................................8
B.
No controlling authority supports the government’s claim that Congress
can deny the Seventh Amendment right to trial by jury...........................16
Congress cannot deny these Michigan landowners’ the ability to vindicate their
constitutional right to compensation in an Article III court. ................................17
CONCLUSION ..............................................................................................................222
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TABLE OF AUTHORITIES
Page(s)
Cases
Arkansas Game and Fish Comm’n v. United States,
133 S. Ct. 511 (2012) ................................................................................................................5
Armstrong v. United States,
364 U.S. 40 (1960) ....................................................................................................................5
Baron de Bode’s Case, 8 Q.B. Rep. 208 (1845)............................................................................13
Bayard v. Singleton,
1 N.C. 5 (N.C. 1787) ...............................................................................................................13
Beer v. United States,
696 F.3d 1174 (Fed. Cir. 2012) (en banc) ...............................................................................18
Boom Co. v. Patterson,
98 U.S. 403 (1878) ..................................................................................................................11
Chappell v. United States,
160 U.S. 499 (1896) ................................................................................................................14
City of Monterey v. Del Monte Dunes at Monterey, Ltd.,
526 U.S. 687 (1999) ....................................................................................................11, 15, 16
Commodity Futures Trading Comm'n v. Schor,
478 U.S. 833 (1986) ................................................................................................................17
Curtis v. Loether,
415 U.S. 189 (1974) ................................................................................................................10
Custiss v. The Georgetown & Alexandria Tpk. Co.,
10 U.S. 233 (1810) ..................................................................................................................14
Duke Power v. Carolina Study Group,
438 U.S. 59 (1978) ............................................................................................................21, 22
Eastern Enters. v. Apfel,
524 U.S. 524 (1998) ................................................................................................................15
Entick v. Carrington, 95 Eng. Rep. 807 (C.P. 1765).......................................................................3
Executive Benefits Insurance Agency v. Arkison,
134 S. Ct. 2165 (2014) ............................................................................................................20
- ii AFDOCS/12276621.1
First English Evangelical Lutheran v. Los Angeles,
482 U.S. 304 (1987) ..................................................................................................................4
Galloway v. United States,
319 U.S. 372 (1943) ..................................................................................................................9
Granfinanciera, S.A. v. Norberg,
492 U.S. 33 (1989) ..................................................................................................................11
Horne v. Department of Agriculture,
2015 WL 2473384 (June 2015) ...........................................................................................5, 12
Jacob v. City of New York,
315 U.S. 752 (1942) ................................................................................................................12
Jacobs v. United States,
290 U.S. 13 (1933) ....................................................................................................................5
Johnson v. City of Shorewood,
360 F.3d 810 (8th Cir. 2004) .............................................................................................16, 17
Kohl v. United States,
91 U.S. 367 (1876) ..................................................................................................................14
Lenoir v. Porters Creek Watershed Dist.,
586 F.2d 1081 (6th Cir. 1978) .................................................................................................21
Lynch v. Household Finance Corp.,
405 U.S. 538 (1972) ..................................................................................................................3
Marbury v. Madison,
5 U.S. 137 (1803) ........................................................................................................5, 6, 7, 22
Marcus. v. Northeast Commuter Servs. Corp.,
1992 WL 129637 (E.D. Pa. June 9, 1992)...............................................................................11
McElrath v. United States,
102 U.S. 426 (1880) ..........................................................................................................16, 17
Northern Pipeline Constr. Co. v. Marathon Pipe Line Co.,
458 U.S. 50 (1982) ......................................................................................................18, 19, 20
Pa. Coal Co. v. Mahon,
260 U.S. 393 (1922) ..................................................................................................................5
Parsons v. Bedford, Breedlove & Robeson,
28 U.S. 433 (1830) ..............................................................................................................9, 10
- iii AFDOCS/12276621.1
Pernell v. Southall Realty,
416 U.S. 363 (1974) ................................................................................................................15
Richlin Sec. Serv. Co. v. Chertoff,
553 U.S. 571 (2008) ..................................................................................................................7
San Diego Gas & Elec. Co. v. San Diego,
450 U.S. 621 (1981) ..................................................................................................................4
Solem v. Helm,
463 U.S. 277 (1893) ..................................................................................................................9
United States v. Booker,
543 U.S. 220 (2005) ................................................................................................................12
United States v. Dickinson,
331 U.S. 745 (1947) ..................................................................................................................4
United States v. James Daniel Good Real Property,
510 U.S. 43 (1993) ....................................................................................................................3
United States v. Jones,
132 S. Ct. 945 (2012) ................................................................................................................3
United States v. Kwai Fun Wong,
135 S. Ct. 1625 (2015) ..............................................................................................................8
United States v. Shorewood,
312 U.S. 767 (1941) ..........................................................................................................17, 18
United States v. Will,
449 U.S. 200 (1980) ................................................................................................................18
United States v. Wonson,
28 F. Cas. 745 (C.C.D. Mass. 1812)........................................................................................10
Upshur Cnty. v. Rich,
135 U.S. 467 (1890) ................................................................................................................11
Whitehead v. Shattuck,
138 U.S. 146 (1891) ................................................................................................................15
Statutes
28 U.S.C §§ 172, 176 ....................................................................................................................18
28 U.S.C. §§1346 and 1491.......................................................................................1, 2, 15, 20, 22
- iv AFDOCS/12276621.1
Federal Courts Improvement Act of 1983, §171(a) ......................................................................18
Other Authorities
George E. Butler II, Compensable Liberty: A Historical and Political Model of
the Seventh Amendment Public Law Jury, 1 Notre DAME J.L. ETHICS & PUB.
POL’Y 595 (1985) ....................................................................................................................10
Fifth Amendment....................................................................................................................passim
Douglas W. Kmiec, The Original Understanding of the Takings Clause Is Neither
Weak Nor Obtuse, 88 COLUM. L. REV. 1630, 1654-1658 (1988)..............................................4
LEONARD W. LEVY, ORIGINS OF THE BILL OF RIGHTS (1999)..................................................10, 13
Seventh Amendment ..............................................................................................................passim
-vAFDOCS/12276621.1
BACKGROUND
This lawsuit is a Fifth Amendment taking case in which Michigan landowners seek just
compensation for property the federal government took from them. The federal government took
these owners’ land for a public recreational trail under the perpetual jurisdiction of the federal
Surface Transportation Board.
See Compl. ¶¶141-58.
The Fifth Amendment requires the
government to compensate owners when it takes their property. Because the government has not
compensated these Michigan owners (or even offered to compensate them), these owners have
been forced to bring this inverse condemnation action.
These owners want their Fifth
Amendment claim adjudicated by this federal district court, an Article III court; and they also
want the compensation they are due determined by a jury as the Seventh Amendment guarantees.
They also bring a declaratory judgment action asking this Court to declare unconstitutional those
provisions of the Tucker Act1 which purport to deny these owners the ability to vindicate their
Fifth Amendment right in this Article III court with trial by jury.
The government says Congress did not waive sovereign immunity allowing this Court to
adjudicate these owners’ Fifth Amendment right to compensation or allow these owners right to
trial by jury as guaranteed by the Seventh Amendment. The government is wrong. We explain
why below.
SUMMARY OF ARGUMENT
The Fifth Amendment guarantee of just compensation is self-executing and not
dependent upon a congressional waiver of sovereign immunity. Determining the compensation
the Fifth Amendment requires the government to pay these owners is a “judicial inquiry” to be
made by an Article III court. And the Seventh Amendment guarantees these owners right to trial
1
28 U.S.C. §1346, et seq.
1
AFDOCS/12276621.1
by jury, including inverse condemnation actions against the government. To the extent the
Tucker Act denies these Michigan owners access to this Article III court to vindicate their Fifth
Amendment right to compensation and right to trial by jury, those provisions are
unconstitutional.
The government says these citizens’ constitutionally-guaranteed right to just
compensation and trial by jury are dependent upon the whim of Congress. The government
claims Congress may adopt a statutory scheme denying the right to trial by jury and denying the
ability to vindicate constitutionally-guaranteed rights in an Article III court.2 The centerpiece of
the government’s argument is its proposition that constitutionally-guaranteed rights are
dependent upon a congressional waiver of sovereign immunity. This is a false premise. The
Fifth Amendment is self-executing. It is not necessary for Congress to waive the United States
sovereign immunity because sovereign immunity has already been waived in the text of the
Constitution. The Tucker Act, a subordinate statute, cannot abrogate these constitutionallyguaranteed rights.
2
The government goes even further and claims the Tucker Act scheme is an absolute bar when
applied to these Michigan owners who, according to the government, have no forum here – or in
the CFC – in which to vindicate their right to compensation. See Exhibit A (Gov. motion, Doc.
No. 29, No. 1:14CV567-NBF (U.S. Court of Federal Claims), pp. 17-20; see also Exhibit B
(Gov. reply, Doc. No. 34), pp. 4, 16. See also Exhibit C (Plaintiffs’ Response to the
Government’s Motion to Dismiss, Doc. No. 30).
2
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ARGUMENT
I.
The Constitution’s Fifth Amendment guarantee of “just compensation” is not
dependent upon a congressional waiver of sovereign immunity.
A.
The Fifth Amendment is a self-executing constitutionally-guaranteed right to
compensation.
An owner’s right to be secure in his or her property is one of the primary objects for
which the national government was formed. In United States v. Jones, 132 S. Ct. 945, 949
(2012), the Supreme Court recalled Lord Camden’s holding in Entick v. Carrington, 95 Eng.
Rep. 807 (C.P. 1765), declaring, “The great end for which men entered into society was to secure
their property.”3 To this end, the Fifth Amendment provides: “No person shall…be deprived of
life, liberty, or property, without due process of law; nor shall private property be taken for
public use, without just compensation.”
The Supreme Court explained, “In any society the fullness and sufficiency of the
securities which surround the individual in use and enjoyment of his property constitute one of
the most certain tests of the character and value of government.” Monongahela Nav. Co. v.
United States, 148 U.S. 312, 324 (1893) (quoted and followed by Olson v. United States, 292
U.S. 246, 254 (1934)).4
3
Madison recognized “Government is instituted to protect property of every sort….This being
the end of government, that alone is a just government, which impartially secures to every man,
whatever is his own….” JAMES MADISON (SAUL K. PADOVER, ed.), THE COMPLETE MADISON
(1953), pp. 267-68 (remarks published in NATIONAL GAZETTE, Mar. 29, 1792). See also JAMES
W. ELY, JR., THE GUARDIAN OF EVERY OTHER RIGHT: A CONSTITUTIONAL HISTORY OF
PROPERTY RIGHTS (2d ed. 1998).
4
Lynch v. Household Finance Corp., 405 U.S. 538, 552 (1972) (“[T]he dichotomy between
personal liberties and property rights is a false one. Property does not have rights. People have
rights…. That rights in property are basic civil rights has long been recognized.”); United States
v. James Daniel Good Real Property, 510 U.S. 43, 61 (1993) (“an essential principle: Individual
freedom finds tangible expression in property rights.”).
3
AFDOCS/12276621.1
Justice Brennan explained the Fifth Amendment’s guarantee of just compensation is selfexecuting:
As soon as private property has been taken, whether through formal
condemnation proceedings, occupancy, physical invasion, or regulation, the
landowner has already suffered a constitutional violation, and the self-executing
character of the constitutional provision with respect to compensation is
triggered. This Court has consistently recognized that the just compensation
requirement in the Fifth Amendment is not precatory: once there is a “taking”
compensation must be awarded.
San Diego Gas & Elec. Co. v. San Diego,
450 U.S. 621, 654 (1981).5
Justice Brennan’s view in San Diego Gas was expressed in a dissent. But in First
English Evangelical Lutheran v. Los Angeles, 482 U.S. 304, 315-16 (1987), the Supreme Court
affirmed Justice Brennan’s view holding the Just Compensation Clause is “self-executing” and
does not “depend on the good graces of Congress.”6
Indeed, even before San Diego Gas and First English the Court found:
whether the theory…be that there was a taking under the Fifth Amendment, and
that therefore the Tucker Act may be invoked because it is a claim founded upon
the Constitution, or that there was an implied promise by the Government to pay
for it, is immaterial. In either event, the claim traces back to the prohibition of
the Fifth Amendment….
United States v. Dickinson,
331 U.S. 745, 748 (1947).7
And, even before that, the Supreme Court noted the fundamental principle that the “[Fifth
Amendment] prevents the public from loading upon one individual more than his just share of
the burdens of government, and says that when he surrenders to the public something more and
5
Brennan, J., dissenting on other grounds (internal citations and quotations omitted; emphasis
added).
6
See also Douglas W. Kmiec, The Original Understanding of the Takings Clause Is Neither
Weak Nor Obtuse, 88 COLUM. L. REV. 1630, 1654-1658 (1988).
7
Emphasis added.
4
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different from that which is exacted from other members of the public, a full and just equivalent
shall be returned to him.” Monongahela, 148 U.S. at 325.8
When the government takes property it has a “categorical duty” to pay just compensation.
See Arkansas Game and Fish Comm’n v. United States, 133 S. Ct. 511, 518 (2012); Horne v.
Department of Agriculture, 2015 WL 2473384 (June 2015), slip op., p. 4.9 Congress may not
evade this categorical duty by establishing a statutory scheme that denies owners the ability to
obtain just compensation.
B.
Congress may not abrogate by statute the right to just compensation
guaranteed by the Constitution.
Because the right to just compensation arises directly from the Constitution, Congress
cannot abrogate this right by statute. See Jacobs v. United States, 290 U.S. 13, 17 (1933) (“the
right to just compensation could not be taken away by statute or be qualified by the omission of a
provision for interest….”) (citing Seaboard Air Line R. Co. v. United States, 261 U.S. 299, 306
(1923); Phelps v. United States, 274 U.S. 341, 343-44 (1927)).
This principle goes back to Marbury v. Madison:
The powers of the legislature are defined, and limited; and that those limits may
not be mistaken, or forgotten, the constitution is written….It is a proposition too
plain to be contested, that the constitution controls any legislative act repugnant to
it; or, that the legislature may alter the constitution by an ordinary act. Between
8
Emphasis added.
9
“The Fifth Amendment's guarantee that private property shall not be taken for a public use
without just compensation was designed to bar Government from forcing some people alone to
bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”
Armstrong v. United States, 364 U.S. 40, 49 (1960). Justice Holmes reminded us: “[t]he
protection of private property in the Fifth Amendment presupposes that it is wanted for public
use, but provides that it shall not be taken for such use without compensation. … We are in
danger of forgetting that a strong public desire to improve the public condition is not enough to
warrant achieving the desire by a shorter cut than the constitutional way of paying for the
change.” Pa. Coal Co. v. Mahon, 260 U.S. 393, 415, 416 (1922).
5
AFDOCS/12276621.1
these alternatives there is no middle ground. The constitution is either a superior,
paramount law, unchangeable by ordinary means, or it is on a level with ordinary
legislative acts, and like other acts, is alterable when the legislature shall please to
alter it. If the former part of the alternative be true, then a legislative act contrary
to the constitution is not law: if the latter part be true, then written constitutions
are absurd attempts, on the part of the people, to limit a power, in its own nature
illimitable.
Marbury v. Madison,
5 U.S. 137, 176-77 (1803).
When a statutory scheme prevents a person from vindicating their constitutionallyguaranteed right to be justly compensated this Court must act. Chief Justice Marshall explained:
It is emphatically the province and duty of the judicial department to say what the
law is. Those who apply the rule to particular cases, must of necessity expound
and interpret that rule. If two laws conflict with each other, the courts must
decide on the operation of each. So if a law be in opposition to the constitution; if
both the law and the constitution apply to a particular case, so that the court must
either decide that case conformably to the law, disregarding the constitution; or
conformably to the constitution, disregarding the law; the court must determine
which of these conflicting rules governs the case. This is of the very essence of
judicial duty. If then the courts are to regard the constitution; and the constitution
is superior to any ordinary act of the legislature; the constitution, and not such
ordinary act, must govern the case to which they both apply.
Marbury, 5 U.S. at 177-78.
In Monongahela, the United States argued that Congress, not the Judiciary, determines
the amount of compensation the United States owed Monongahela Company for the property it
had taken. But the Supreme Court rejected the government’s argument and held, “Congress has
supreme control over the regulation of commerce, but if, in exercising that supreme control, it
deems it necessary to take private property, then it must proceed subject to the limitations
imposed by this fifth amendment, and can take only on payment of just compensation.” 148 U.S.
at 336. And, the Supreme Court emphatically rejected that proposition that Congress could
usurp from the Judicial Branch the role of determining just compensation.
By this legislation congress seems to have assumed the right to determine what
shall be the measure of compensation. But this is a judicial, and not a legislative,
6
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question. The legislature may determine what private property is needed for
public purposes; that is a question of a political and legislative character. But
when the taking has been ordered, then the question of compensation is judicial.
It does not rest with the public, taking the property, through congress or the
legislature, its representative, to say what compensation shall be paid, or even
what shall be the rule of compensation. The constitution has declared that just
compensation shall be paid, and the ascertainment of that is a judicial inquiry.
Monongahela, 148 U.S. at 327.10
C.
The government’s talismanic invocation of “sovereign immunity” is contrary
to the Supreme Court’s jurisprudence.
The government mistakenly believes “sovereign immunity” is some magic talisman the
government can waive in front of this Court and, by doing so, deny these Michigan landowners
the ability to vindicate their constitutional claims in this Article III court. Even in the context of
congressionally-created entitlements, the Supreme Court rejects the government’s concept of
sovereign immunity.
[T]he Government seeks shelter in a canon of construction. According to the
Government, any right to recover paralegal fees under EAJA must be read
narrowly in light of the statutory canon requiring strict construction of waivers of
sovereign immunity. We disagree.
The sovereign immunity canon is just that—a canon of construction. It is a tool
for interpreting the law, and we have never held that it displaces the other
traditional tools of statutory construction.
Richlin Sec. Serv. Co. v. Chertoff,
553 U.S. 571, 589 (2008).11
First, and most fundamentally, it is not necessary for Congress to waive sovereign
immunity by statute because the Constitution itself obligates the United States to pay
compensation and no additional waiver of sovereign immunity is needed. As Chief Justice
Marshall explained in Marbury, Congress cannot abrogate by statute those rights guaranteed in
10
Emphasis added.
11
Emphasis added.
7
AFDOCS/12276621.1
the Constitution. Secondly, sovereign immunity is not the rigid concept the government purports
it to be. Justice Scalia noted this point in READING LAW:
[Rigid application of the rule disfavoring waiver of sovereign immunity] made
sense when suits against the government were disfavored, but not in modern
times….The Supreme Court of the United States began to make exceptions to this
[rigid] approach in the 1960s, and finally signaled complete departure in a 1990
opinion written by Chief Justice Rehnquist.12
The government further fails to appreciate the fundamental difference between
constitutionally-created rights (such as the Fifth Amendment right to just compensation and the
Seventh Amendment right to trial by jury) as opposed to congressionally-created entitlements
(such as contracts and employment claims). While a statutory waiver of sovereign immunity
may be necessary to enforce a congressionally-created entitlement this does not apply when the
right being enforced is established by the Constitution itself.
The government’s failure to
comprehend this fundamental distinction is why the government wrongly cites decisions
discussing waiver of sovereign immunity in employment and contract cases as though those
decisions have any relevance to this case involving the vindication of the self-executing
constitutional right to compensation.
II.
Congress cannot deny these Michigan landowners’ their Seventh Amendment right
to trial by jury.
A.
The Seventh Amendment guarantees the right to trial by jury in Fifth
Amendment inverse condemnation suits.
The Seventh Amendment guarantees “[i]n suits at common law, where the value in
controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact
12
ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL
TEXTS (2012), p. 285 (citing Honda v. Clark, 386 U.S. 484, 501 (1967); Bowen v. City of N.Y.,
476 U.S. 467, 479 (1986); Irwin v. Dept. of Veterans Affairs, 498 U.S. 89, 95-96 (1990)). See
also United States v. Kwai Fun Wong, 135 S. Ct. 1625 (2015).
8
AFDOCS/12276621.1
tried by a jury, shall be otherwise reexamined in any court of the United States, than according to
the rules of the common law.” The text does not make any exception for suits against the federal
government and, as we note below, the history of the Seventh Amendment makes clear the
Founders were especially concerned about guaranteeing the right to jury trial in actions against
the government.
The Supreme Court has repeatedly affirmed the fundamental importance of the right to
trial by jury. For example, in Galloway v. United States, 319 U.S. 372, 398-99 (1943) (Black, J.,
dissenting on other grounds),13 Justice Black noted:
[I]n response to widespread demands from the various State Constitutional
Conventions, the first Congress adopted the Bill of Rights containing the Sixth
and Seventh Amendments, intended to save trial in both criminal and common
law cases from legislative or judicial abridgment….[Patrick] Henry, speaking in
the Virginia Constitutional Convention, had expressed the general conviction of
the people of the Thirteen States when he said, ‘Trial by jury is the best
appendage of freedom….We are told that we are to part with that trial by jury
with which our ancestors secured their lives and property….I hope we shall never
be induced, by such arguments, to part with that excellent mode of trial. No
appeal can now be made as to fact in common law suits. The unanimous verdict
of impartial men cannot be reversed.’ The first Congress, therefore provided for
trial of common law cases by a jury, even when such trials were in the Supreme
Court itself.14
The Supreme Court’s Seventh Amendment jurisprudence holds the “right of trial by jury”
is guaranteed as it existed under English common law in 1791 when the Seventh Amendment
was adopted. See Curtis v. Loether, 415 U.S. 189, 193 (1974) (“[T]he thrust of the [Seventh]
13
See also Solem v. Helm, 463 U.S. 277, 286 (1893) (explaining the fundamental nature of the
right to trial by jury and tracing the origin of this right to Magna Carta).
14
Citation omitted. The Court noted, “One of the strongest objections originally taken against
the constitution of the United States, was the want of an express provision securing the right of
trial by jury in civil cases.’ Parsons v. Bedford, Breedlove & Robeson, 28 U.S. 433, 446 (1830).
Of the seven States which, in ratifying the Constitution, proposed amendments, six included
proposals for the preservation of jury trial in civil cases.” Id.
9
AFDOCS/12276621.1
Amendment was to preserve the right to jury trial as it existed in 1791.”).15 As such, the Seventh
Amendment guarantees “the right of trial by jury” for all suits involving legal rights – as opposed
to proceedings in admiralty or equity. See Parsons v. Bedford, 28 U.S. 433, 446 (1860) (“By
[suits at] ‘common law,’ [the Framers] meant…suits in which legal rights were to be ascertained
and determined, in contradistinction to those where equitable rights alone were regarded, and
equitable remedies were administered; or where, as in admiralty, a mixture of public law and of
maritime law and equity was often found in the same suit.”).16
At common law the type of damages a plaintiff sought as well as the subject matter of the
action determined which court would hear the action. Equity and admiralty courts did not have
juries while courts of law did. Thus, if the action is one seeking to enforce a legal right that
would be heard by the law courts with a jury, as opposed to equity and admiralty that sat without
a jury. See Parsons, 28 U.S. at 446. The Supreme Court held, “if the action must be tried under
the auspices of an Article III court, then the Seventh Amendment affords the parties a right to a
15
See Justice Story’s opinion in United States v. Wonson, 28 F. Cas. 745, 750 (C.C.D. Mass.
1812) (“treating the Seventh Amendment common law ‘Suits’ as a dynamic category extending
to all new types of cases provided only that they determine ‘legal rights’”). George E. Butler II,
Compensable Liberty: A Historical and Political Model of the Seventh Amendment Public Law
Jury, 1 NOTRE DAME J.L. ETHICS & PUB. POL’Y 595, 644 n.172 (1985).
16
Emphasis in original. King George attempted to circumvent American colonists’ right to jury
trial by assigning disputes over the Stamp Act tax to admiralty courts that sat without a jury.
“John Adams voiced the American reaction: ‘But the most grievous innovation of all, is the
alarming extension of the power of the courts of admiralty. In these courts, one judge presides
alone! No juries have any concern there! The law and the fact are both to be decided by the
same single judge….’ Colonists vehemently denounced admiralty courts because they worked
without juries….” Colonists praised [Blackstone’s] remarks [in his Commentaries] to the effect
that trial by jury was the ‘sacred palladium’ of English liberties….” Leonard W. Levy, ORIGINS
OF THE BILL OF RIGHTS (1999), p. 226. The Declaration of Independence included “depriving us,
in many cases, of the benefit of trial by jury” in its list of Britain’s offenses against the American
colonies.
10
AFDOCS/12276621.1
jury trial whenever the cause of action is legal in nature.” Granfinanciera, S.A. v. Norberg, 492
U.S. 33, 53 (1989).
Historically, an owner’s action to be justly compensated for land the government took is
a “suit at common law” in which the owner has the right to trial by jury.17 The Supreme Court
explained, “The Seventh Amendment thus applies not only to common-law causes of action but
also to statutory causes of action “‘analogous to common-law causes of action ordinarily decided
in English law courts in the late 18th century, as opposed to those customarily heard by courts of
equity or admiralty.’” City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687,
708-09 (1999) (citations omitted).
Since King John met the barons on the fields of Runnymede in 1215, the right to trial by
jury has been accepted as a fundamental premise of Anglo-American law. The Supreme Court
observed:
The right of jury trial in civil cases at common law is a basic and fundamental
feature of our system of federal jurisprudence which is protected by the Seventh
Amendment. A right so fundamental and sacred to the citizen, whether
17
There are many examples of federal takings cases tried to a jury. See, e.g., Boom Co. v.
Patterson, 98 U.S. 403, 404 (1878) (a condemnation proceeding removed to federal district court
where the Supreme Court affirmed the procedure was for the court to “‘proceed to hear and
determine such case in the same manner that other cases are heard and determined in said court.’
Issues of fact arising therein are to be tried by a jury, unless a jury be waived. The value of the
land being assessed by the jury or the court, as the case may be.”); Pac. R.R. Removal Cases, 115
U.S. 1, 5 (1885), superseded by statute on other grounds, Marcus. v. Northeast Commuter Servs.
Corp., 1992 WL 129637 (E.D. Pa. June 9, 1992) (a case removed to federal district court in
which a city condemned a road through property a railroad corporation acquired for a rail yard:
“[a] jury was summoned…to inquire and find the value of the property taken for the street.”);
Upshur Cnty. v. Rich, 135 U.S. 467, 474-76 (1890) (citing Kohl v. United States, 91 U.S. 367,
376 (1876) (affirming that a proceeding to take land and determine the compensation due the
owner was “the form of a suit at law, and was thenceforth subject to its ordinary rules and
incidents” of such actions including the principle that “[i]ssues of fact were to be tried by a jury
unless a jury was waived.”).
11
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guaranteed by the Constitution or provided by statute, should be jealously guarded
by the courts.
Jacob v. City of New York,
315 U.S. 752, 752-53 (1942).18
In England, before 1791, actions by landowners seeking compensation for property taken
by the King were tried to a jury.19 In De Keyser’s Royal Hotel v. The King, ch. 2, p. 222 [1919],
Swinfen Eady M.R. described English law between 1708 and 1798:
It appears then to be fully recognized [that by 1708] the land of a subject could
not be taken against his will, except under the provisions of an Act of Parliament.
Accordingly, in 1708, was passed the first of a series of Acts to enable particular
lands to be taken compulsorily…provision is made for the appointment of
Commissioners to survey the lands to be purchased, and in default of agreement
with the owners, the true value is to be ascertained by a jury.20
18
See United States v. Booker, 543 U.S. 220, 239 (2005) (“[T]he right to a jury trial had been
enshrined since the Magna Carta.”). See also Magna Carta §§39 and 52. “No free man shall be
taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor
send upon him, except by the lawful judgment of his peers or by the law of the land….If anyone
has been dispossessed or removed by us, without the legal judgment of his peers, from his lands,
castles, franchises, or from his right, we will immediately restore them to him; and if a dispute
arise over this, then let it be decided by the five-and-twenty barons of whom mention is made
below in the clause for securing the peace.” JAMES K. WHEATON, THE HISTORY OF THE MAGNA
CARTA.
19
Chief Justice Roberts recently recalled the Fifth Amendment right of compensation arises
from Magna Carta:
[The Fifth Amendment] protects “private property” without any distinction between
different types. The principle reflected in the Clause goes back at least 800 years to
Magna Carta…Clause 28 of that charter forbade any “constable or other bailiff”
from taking “corn or other provisions from any one without immediately tendering
money therefor, unless he can have postponement thereof by permission of the
seller.” Cl. 28 (1215), in W. MCKECHNIE, MAGNA CARTA, A COMMENTARY ON THE
GREAT CHARTER OF KING JOHN 329 (2d ed. 1914). The colonists brought the
principles of Magna Carta with them to the New World, including that charter’s
protection against uncompensated takings of personal property.
Horne, 2015 WL 2473384 at *5.
20
Citing Statute 7 Anne c. 26 (emphasis added).
12
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The English equivalent to an inverse condemnation action, such as this case, was a
common law action called a “petition of right” for which there was the right to trial by jury. See
Baron de Bode’s Case, 8 Q.B. Rep. 208 (1845).21
The Seventh Amendment guarantee of a right to jury trial is especially applicable to
actions an individual brings against the government:
The basic argument is that civil jury trials were prized by the populace chiefly for
their public law implications, that is for their utility in preventing possible
oppression in tax suits, condemnation proceedings, and other administrative
actions and, if necessary, in obtaining redress for consummated governmental
wrongs through collateral suits for damages against officials.22
An owner’s constitutional right to trial by jury when the government takes her property
was a clearly established principle of American law before 1791. Bayard v. Singleton, 1 N.C. 5,
1787 WL 6 (1787), illustrates the point. In this celebrated case, North Carolina confiscated
property owned by British sympathizers, including Samuel Cornell, “the richest man in North
Carolina.” Cornell deeded thousands of acres of his land to his daughter, Elizabeth Cornell
Bayard. Id. at *8. North Carolina confiscated Elizabeth Bayard’s land and sold it to Spyers
Singleton. In 1787, Elizabeth Bayard sued to recover title to her family homestead. Elizabeth
Bayard argued North Carolina confiscated her property in violation of North Carolina’s
constitution guaranteeing a right to jury trial.
Elizabeth Bayard prevailed, and the North
21
See Levy, supra note 13, at 211 (“Under an ordinance of 1164 known as the Constitutions of
Clarendon, the sheriff, acting at the instigation of the bishop, could swear twelve men of the
countryside to give a verdict – that is, to speak the truth on issues involving property rights….No
one could be evicted or disposed of his land without the prior approval of a jury verdict. A
verdict in his favor restored him to possession of the land. Thus trial by jury emerged as the
legal remedy for a person who had faced dispossession.”).
22
Butler, supra note 15 (emphasis added) (citing, among other authorities, Damsky v. Zavatt,
289 F.2d 46, 49-50 (2d Cir. 1971) (Friendly, J.), and The Federalist No. 83 (A. Hamilton)).
13
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Carolina Supreme Court declared the legislative act authorizing the confiscation of property
without a jury trial unconstitutional.
Owners whose property was taken by the federal government likewise enjoyed the right
to trial by jury to determine the compensation. Chappell v. United States, 160 U.S. 499 (1896),
is such a case. The United States took an easement across land to allow a clear field-of-view for
a lighthouse on Hawkins Point, Maryland. The Court noted “the proceeding, instituted and
concluded in a [district] court of the United States, was, in substance and effect, and action at
law.” Chappell, 160 U.S. at 513 (citing Kohl, 91 U.S. at 376; and Upshur Co., 135 U.S. at 476).
The Court held, “[t]he general rule, as expressed in the Revised Statutes of the United States, is
that the trial of issues of fact in actions at law…‘shall be by jury,’ by which is evidently meant a
trial by an ordinary jury at the bar of the court.” Id. (emphasis added). The court continued,
noting, “[the landowner] had the benefit of a trial by an ordinary jury at the bar of the district
court on the question of the damages sustained by him.” Id. at 514. See also Custiss v. The
Georgetown & Alexandria Tpk. Co., 10 U.S. 233, 234 (1810).23
This action is “a suit at common law” for which the Seventh Amendment guarantees the
owner a right to trial by jury. See Kohl, 91 U.S. at 376 (“The right of eminent domain always
was a right at common law. It was not a right in equity, nor was it even the creature of a
statute….It is difficult, then, to see why a proceeding to take land in virtue of the government’s
23
A decision by Chief Justice Marshall arising from land owned by Martha Washington’s heirs
in the District of Columbia that was condemned for a turnpike. Marshall noted the act of
Congress authorizing the turnpike company to take the Custiss’ property provided, “in case of
disagreement, ‘on application to one of the judges of the circuit court, he shall issue a warrant
directed to the marshal of the district to summon a jury of 24 inhabitants of the district of
Columbia, of property and reputation, not related to the parties, nor in any manner interested, to
meet on the land to be valued…[and] the said jury, and when met…shall faithfully, justly and
impartially value the lands, and all damages the owner thereof shall sustain, by opening the road
through such land.”
14
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eminent domain, and determining the compensation made for it, is not, within the meaning of the
statute, a suit at common law….”). The Supreme Court holds that a lawsuit for compensation is
a legal action, not an equitable action:
We have recognized the general rule that monetary relief is legal. Just
compensation, moreover, differs from equitable restitution and other monetary
remedies available in equity, for in determining just compensation, the question is
what has the owner lost, not what has the taker gained. As its name suggests,
then, just compensation is, like ordinary money damages, a compensatory
remedy. The Court has recognized that compensation is a purpose traditionally
associated with legal relief.
Del Monte Dunes,
526 U.S. at 710-11.24
In Pernell v. Southall Realty, 416 U.S. 363, 370 (1974), the Supreme Court held:
[t]his Court has long assumed that actions to recover land, like actions for
damages to a person or property, are actions at law triable to a jury. In Whitehead
v. Shattuck, 138 U.S. 146, 151 (1891), for example, we recognized that “(i)t
would be difficult, and perhaps impossible, to state any general rule which would
determine in all cases what should be deemed a suit in equity as distinguished
from an action at law…but this may be said, that where an action is simply for the
recovery and possession of specific, real, or personal property, or for the recovery
of a money judgment, the action is one at law.”25
Actions for money damages against the United States are a legal action, not an equitable
action. The CFC has no equitable or admiralty jurisdiction. See Eastern Enters. v. Apfel, 524
U.S. 524, 520 (1998) (“Such equitable relief is arguably not within the jurisdiction of the Court
24
Internal quotations and citations omitted (citing and quoting Feltner v. Columbia Pictures
Television, Inc., 523 U.S. 340, 352 (1998); Teamsters v. Terry, 494 U.S. 558, 570 (1990); Boston
Chamber of Commerce v. Boston, 217 U.S. 189, 195 (1910)).
25
Emphasis added (citing Scott v. Neely, 140 U.S. 106, 110 (1891); Ross v. Bernhard, 396 U.S.
531, 533 (1970).
15
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of Federal Claims under the Tucker Act.”).26 It thus follows that an award of money damages as
just compensation for the government’s taking of an owner’s property is not an equitable action.
B.
No controlling authority supports the government’s claim that Congress can
deny the Seventh Amendment right to trial by jury.
The government says the Seventh Amendment right to trial by jury does not apply to
actions against the United States: “The Supreme Court has recognized since the 1800s that the
Seventh Amendment does not require a jury trial in cases against the United States.” Gov. Br. p.
14. There are several problems with the government’s contention. First, the text of the Seventh
Amendment admits of no such qualification. Indeed, the history of the Seventh Amendment, as
we note above, is most emphatic in guaranteeing the right to trial by jury especially in matters
against the government.
Secondly, there is no controlling authority supporting the government’s contention that
Congress may abrogate the right to trial by jury in actions arising under the constitution.27 The
government cites McElrath v. United States, 102 U.S. 426 (1880). McElrath was a backpay case
brought in the Claims Court. McElrath did not involve a Fifth Amendment claim or other claim
arising under the Constitution. Likewise, Johnson v. City of Shorewood, 360 F.3d 810 (8th Cir.
2004), provides the government no succor. (1) The “holding” for which the government cites
Johnson is contrary to the Supreme Court’s holding in Del Monte Dunes finding there is a
26
Citing United States v. Mitchell, 463 U.S. 206, 216 (1983) (explaining that, “in order for a
claim to be ‘cognizable under the Tucker Act,’ it ‘must be one for money damages against the
United States.’”).
27
For certain congressionally-established entitlements and actions (e.g., Social Security benefits,
employment benefits contract claims and such) when Congress created the action Congress may
define or limit the method by which the action may be enforced. But that is not this case. These
Michigan owners are seeking to vindicate their constitutionally-guaranteed right to just
compensation, not a congressionally-created entitlement and not a right that requires Congress to
waive the United States sovereign immunity.
16
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Seventh Amendment right to jury trial in inverse condemnation actions. (2) The Eighth Circuit’s
statement is dicta in that the case was decided on other grounds; and, (3) to the extent the Eighth
Circuit did address the right to jury trial in matters against the government the authority the Eight
Circuit cited was limited to actions for matters other than constitutionally-guaranteed rights. The
Eighth Circuit cited the Supreme Court’s decision United States v. Shorewood, 312 U.S. 767
(1941).
But Shorewood, like McElrath, involved an action to enforce a congressionally-
established right – not constitutionally-guaranteed right. Shorewood involved a court of claims
action seeking to collect on a third-party contract claim.
The government fails to find any authority for its proposition that Congress may deny the
Seventh Amendment right to trial by jury in actions against the federal government that vindicate
the Fifth Amendment’s self-executing constitutional guarantee of just compensation. Citing a
case that says Congress may deny the right to jury trial in congressionally-created contract
claims does not address the issue this case presents.
III.
Congress cannot deny these Michigan landowners’ the ability to vindicate their
constitutional right to compensation in an Article III court.
Article III, §1, “directs that the ‘judicial Power of the United States shall be vested in one
supreme Court and in such inferior Courts as the Congress may from time to time ordain and
establish,’ and provides that these federal courts shall be staffed by judges who hold office
during good behavior, and whose compensation shall not be diminished during tenure in office.”
Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 847 (1986). The Constitution
describes an Article III court’s jurisdiction as, “[t]he judicial Power shall extend to all Cases, in
Law and Equity, arising under this Constitution, the Laws of the United States…to Controversies
to which the United States shall be a Party….”
17
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“The Constitution erects our government on three foundational cornerstones – one of
which is an independent judiciary. The foundation of that judicial independence is, in turn, a
constitutional protection for judicial compensation. The framers of the Constitution protected
judicial compensation from political processes because ‘a power over a man's subsistence
amounts to a power over his will.”’ Beer v. United States, 696 F.3d 1174, 1176 (Fed. Cir. 2012)
(en banc) (citing THE FEDERALIST No. 79, p. 472 (Alexander Hamilton) (Clinton Rossiter, ed.,
1961)). 28
The CFC is not an Article III court but is an executive branch tribunal, also called a
legislative court. See Federal Courts Improvement Act of 1983 §171(a) (codified as 28 U.S.C.
§171(a)), providing, “The court [of Federal Claims] is declared to be a court established under
article I of the Constitution of the United States.” The Supreme Court noted, “The Court of
Claims is a legislative, not a constitutional court. Its judicial power is derived not from the
Judiciary Article of the Constitution, article 3, but from the Congressional power ‘to pay the
debts…of the United States,’ article 1, §8, c.1, which [Congress] is free to exercise through
judicial as well as non-judicial agencies.” Sherwood, 312 U.S. at 771. The judges on the CFC,
like the bankruptcy judges in Northern Pipeline, “do not enjoy the protections constitutionally
afforded to Article III judges.” 458 U.S. at 60. Judges on the CFC are appointed for fifteen-year
terms, can be removed by the Federal Circuit, and their salaries are not immune from diminution
by Congress. See 28 U.S.C §§ 172, 176.
28
“A Judiciary free from control by the Executive and Legislature is essential if there is a right
to have claims decided by judges who are free from potential domination by other branches of
government.” United States v. Will, 449 U.S. 200, 217-18 (1980). The Court quoted and
affirmed this holding in Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50,
58 (1982).
18
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The right to vindicate constitutional rights before an independent judiciary is no minor
point. The Declaration of Independence contained a list of grievances upon which our nation
declared its independence from Britain. Among those were “[King George] has made Judges
dependent on his Will alone, for the tenure of their offices, and the amount and payment of their
salaries. [King George] has obstructed the Administration of Justice, by refusing his Assent to
Laws for establishing Judiciary powers.”
Determining the compensation these Michigan landowners are due is an “inherently
judicial” endeavor, not a legislative or executive matter.
By this legislation [specifying the amount of compensation landowners were to be
paid] congress seems to have assumed the right to determine what shall be the
measure of compensation. But, this is a judicial, and not a legislative, question.
The legislature may determine what private property is needed for public
purposes; that is a question of political and legislative character. But when the
taking has been ordered, then the question of compensation is judicial. It does not
rest with the public, taking the property, through congress or the legislature, its
representative, to say what compensation shall be paid, or even what shall be the
rule of compensation. The constitution has declared that just compensation shall
be paid, and the ascertainment of that is a judicial inquiry.29
Monongahela, 148 U.S. at 327.
The Supreme Court in Monongahela further held, “The right of the legislature of the state
by law to apply the property of the citizen to the public use, and then to constitute itself the judge
of its own case, to determine what is the ‘just compensation’ it ought to pay therefor…cannot for
a moment be admitted or tolerated under our constitution.” 148 U.S. at 327-28 (quoting Isom v.
Miss. Cent. R. Co., 36 Miss. 300 (1858)).
29
See also Northern Pipeline., 458 U.S. at 68 (“The public-rights doctrine is grounded in a
historically recognized distinction between matters that could be conclusively determined by the
Executive and Legislative Branches and matters that are ‘inherently … judicial.’”) (quoting Ex
parte Bakelite Corp., 279 U.S. 438, 458 (1929)).
19
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The Supreme Court explained that Congress cannot remove this Court’s Article III power
and vest it with a non-Article III tribunal:
In Northern Pipeline, this Court addressed whether bankruptcy judges under the
1978 Act could “constitutionally be vested with jurisdiction to decide [a] statelaw contract claim” against an entity not otherwise a party to the proceeding. The
Court concluded that assignment of that claim for resolution by the bankruptcy
judge “violates Art. III of the Constitution.” The Court distinguished between
cases involving so-called “public rights,” which may be removed from the
jurisdiction of Article III courts, and cases involving “private rights,” which may
not.
Executive Benefits Insurance Agency v. Arkison,
134 S. Ct. 2165, 2171 (2014).30
During oral argument in Arkison Chief Justice Roberts observed, “the authority to decide
cases…is [the courts’] Constitutional birthright [which] we said in Stern [v. Marshall] that
Congress can’t take that away from us.” Oral Argument Trans., p. 51.
In the Tucker Act and Little Tucker Act, 28 U.S.C. §§1346 and 1491, Congress vested
the CFC with exclusive jurisdiction to hear all claims against the United States “founded upon
the Constitution” where the amount in controversy exceeds $10,000. To the extent Congress
created the CFC as an Article I legislative court free of Article III’s requirements and vested the
CFC with exclusive jurisdiction to hear claims “founded upon the Constitution” these provisions
are unconstitutional.31
Doing so violates the general principle of independent adjudication Article III commands.
See Northern Pipeline, 458 U.S. at 76. The provisions of the Tucker Act and Little Tucker Act
purporting to establish exclusive jurisdiction over such claims in the CFC (and thereby removing
30
Citations omitted.
31
Congress can provide the CFC as an alternative tribunal to whom an owner may submit their
claim if the owner consents to forgo an Article III court, but Congress cannot remove from the
jurisdiction of this Article III court deciding compensation in Fifth Amendment claims.
Alternatively, Congress could establish the CFC as an Article III court.
20
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these claims from this Article III court) “violate[] the command of Art. III that the judicial power
of the United States must be vested in courts whose judges enjoy the protections and safeguards
specified in that Article.” Id. at 62.
The government also appeals to Lenoir v. Porters Creek Watershed Dist., 586 F.2d 1081,
1088 (6th Cir. 1978), for support.
But Lenoir provides no support for the government’s
argument. In Lenoir a panel of the Sixth Circuit recognized “[t]he Fifth Amendment ‘taking
claim’ arises under the Constitution,’ and a remedy for a violation of this provision arguably
does not require a waiver of sovereign immunity.”
Id.
The Court further noted the
constitutionality of the CFC’s jurisdiction was “not considered by Lenoir.” Id. And, while the
Court found “a number of cases indicate that Congress has made the Court of Claims the
exclusive and an adequate forum for the Fifth Amendment claims” it did not pass on the
constitutionality of this scheme and, most importantly, the cases it cited were cases like Duke
Power v. Carolina Study Group, 438 U.S. 59 (1978), that concerned specific congressionallycreated acts granting entitlement to participate in a legislatively-created fund. In the case of
Duke Power it was the Price-Cooper Act establishing a fund for damages from nuclear accidents.
These cases cannot extend to the self-executing constitutional right to compensation guaranteed
by the Fifth Amendment that is at issue here.
Finally, the government says this Court cannot render declaratory judgment on the
constitutionality of the offending Tucker Act provisions. The government is wrong. No matter
what you think of the government’s other jurisdictional arguments, a declaratory judgment action
under 28 U.S.C. §2201 is not a claim for compensation or right to jury trial on the merits. Rather
it asks this Court to resolve the constitutional dispute between these statutory provisions and the
Constitution.
This is emphatically something this Court has jurisdiction to declare.
21
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See
Marbury, 5 U.S. at 177-78. In Eastern Enterprises, 524 U.S. 498, 522 (1998), the Supreme
Court held, “[T]he Declaratory Judgment Act ‘allows individuals threatened with a taking to
seek a declaration of the constitutionality of the disputed governmental action before potentially
compensable damages are sustained.’”32
CONCLUSION
The government premises its argument upon a shocking proposition. The government
says, “[e]ven if the United States creates rights in individuals against itself, it is still under no
obligation to create or allow for a remedy through the courts.” Govt. Br. p. 12 (emphasis
added). This statement is not just entirely wrong, it is at war with every foundational tenet upon
which our nation is founded. The notion of Congress über alles is repugnant.
First, the federal government does not “create rights in individuals against itself.” The
federal government is a creature of “We the People” that established, defined and limited the
powers of the federal government in our Constitution.
Second, (using the government’s
formulation) who “created rights” in these individuals against the government? Was it Congress
or the Constitution? As it relates to this case that is the central distinction. These twenty
Michigan landowners right to be justly compensated for that property the federal government
took from them is established, guaranteed and vouched-safe by our Constitution. Congress has
no authority to abrogate this right.
According to the government, the Constitution guarantees only those rights Congress
deigns to recognize and Congress possesses the authority to deny the co-equal Judicial Branch’s
authority to declare and vindicate those rights guaranteed by the Constitution. And, according to
the government, Congress can delegate the “judicial task” of determining compensation to a
32
Quoting Duke Power, 438 U.S. at 71, n.15.
22
AFDOCS/12276621.1
legislative tribunal that is not part of the judicial branch and does not enjoy the independence
granted an Article III court.
If the government’s argument is correct, Congress could deny this Court jurisdiction over
any other constitutionally-guaranteed right. If the government is correct, Congress could deny
this Court jurisdiction over equal protection claims such as same-sex marriage, freedom of
speech or freedom of religion. If the government is right, those liberties guaranteed by the
Constitution are really only at Congress’s whim because, according to the government, Congress
can abdicate these rights anytime it wishes by denying the Judicial Branch and this Article III
court jurisdiction to hear claims founded upon these constitutional rights.
But the government is profoundly wrong. We quote Chief Justice Marshall in Marbury
at length because the point is foundational and transcendent. “We the People” have cabined the
acts of Congress and the Executive.
We the People have guaranteed the right to just
compensation and trial by jury and enshrined these foundational rights in our Constitution. And,
We the People established an independent judiciary to enforce these rights and principles.
Accordingly, we ask this Court to determine the “just compensation” the Constitution
guarantees these Michigan owners, to do so with trial by jury and to declare those provisions of
the Tucker Act that purport to prevent this Court from doing so to be unconstitutional.
23
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Respectfully submitted,
ARENT FOX LLP
/s/ Mark F. (Thor) Hearne, II
MARK F. (THOR) HEARNE, II (P40231)
Meghan S. Largent
Stephen S. Davis
ARENT FOX, LLP
112 S. Hanley Road, Suite 200
Clayton, MO 63105
Tel: (314) 296-4000
Fax: (202) 857-6395
thornet@ix.netcom.com
1717 K Street, NW
Washington, DC 20036-5342
Phone: (202) 857-6000
Counsel for Plaintiffs
Matthew L. Vicari
MILLER JOHNSON PLC
250 Monroe Ave., NW, Suite 800
Grand Rapids, MI 49501-0306
Tel: (616) 831-1700
Fax: (616) 988-1762
vicarim@millerjohnson.com
Of Counsel
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